State v. Jacobs

301 S.E.2d 429 (1983)

STATE of North Carolina v. James J. JACOBS.

No. 825SC910.

Court of Appeals of North Carolina.

April 5, 1983.

*430 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Floyd M. Lewis, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Malcolm R. Hunter, Jr., Raleigh, for defendant, appellant.

HEDRICK, Judge.

Defendant first contends that judgment should be arrested because an assault with his fists does not satisfy the "deadly weapon" element of the indictment. A deadly weapon is "any article, instrument or substance which is likely to produce death or great bodily harm." State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981) (citations omitted). The defendant, a thirty-nine year old male who weighed two hundred ten pounds, hit the victim, a sixty year old woman, in the head and stomach. Brain hemorrhages and other injuries resulted from the beating, causing the victim to be unable to care for herself. The defendant's fists could have been a deadly weapon given the manner in which they were used and the relative size and condition of the parties. See State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978); State v. Archbell, 139 N.C. 537, 51 S.E. 801 (1905).

Since defendant's fists could have been a deadly weapon in the circumstances of this assault, the indictment was sufficient. The indictment specifically stated that defendant used his fists as a deadly weapon and gave facts demonstrating their deadly character. The Supreme Court of North Carolina in State v. Palmer, 293 N.C. 633, 639-640, 239 S.E.2d 406, 411 (1977) has noted that,

it is sufficient for indictments or warrants seeking to charge a crime in which one of the elements is the use of a deadly weapon (1) to name the weapon and (2) either to state expressly that the weapon used was a `deadly weapon' or to allege such facts as would necessarily demonstrate the deadly character of the weapon. (Emphasis in original.)

Next, defendant contends that the trial court erred in instructing the jury to consider lesser included offenses after acquitting defendant of assault with a deadly weapon, inflicting serious injury. The jury instruction was not ideal, but it could not have coerced the jury into returning a verdict of guilty on the greater offense. A judge may direct the jury to decide upon lesser included offenses only after finding defendant not guilty on the charged offense. State v. Wilkins, 34 N.C.App. 392, 399-400, 238 S.E.2d 659, 664-665 (1977).

The defendant had a fair trial free from prejudicial error.

No Error.

WHICHARD and BRASWELL, JJ., concur.